Abstract

The disciplinary rules of every state prohibit attorneys from charging unreasonable fees. However, these provisions are virtually never enforced based on the size of the fee alone; almost all cases involve independent forms of misconduct, such as falsifying billing records, or demanding fees in excess of an agreed upon amount. The only two cases the authors could find in which attorneys have been disciplined solely based on the size of the fee involved blue-chip civil attorneys - former Harvard and Yale law school faculty members - who represented working-class defendants in criminal matters. In both cases, the conclusion that the fee was excessive was questionable; the clients were completely exonerated of criminal charges and the amounts involved would have been unexceptional in elite civil practice. These disciplinary prosecutions were particularly doubtful, the authors argue, because the Sixth Amendment right to retain counsel of choice prohibits the government from limiting the amount of money criminal defendants can pay their lawyers.

The reasonable fee rules are either unenforced or perversely enforced because they are not designed to limit lawyer's fees or incomes per se, but to ensure that lawyers do not take advantage of clients, and that clients understand the nature of the legal services they are buying. The mismatch between the purpose of the rules and their language should be remedied by making clear that lawyers are obligated to talk with their clients about their legal options and offer some estimate of what they might cost. But fees negotiated after appropriate disclosure should not subject an attorney to discipline.

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